Private Right or No Right? The Future of § 2 Voting Rights Litigation

By Taylor Van Why. 

Introduction

Redistricting, which is the process of redrawing legislative district boundaries based on decennial census data, shapes the political power of voters across the United States. These district maps determine which communities are grouped together and, ultimately, affect a voter’s ability to elect representatives of their choice. Because redistricting is a “data-heavy undertaking,” district maps typically remain in place for ten years and must comply with the Voting Rights Act (“VRA”) and the U.S. Constitution. 

Congress, courts, the Department of Justice (“DOJ”), and private litigants have long recognized that § 2 of the VRA could be enforced by individuals. But this long-standing enforcement mechanism now faces an uncertain future. Turtle Mountain Band of Chippewa Indians v. Howe, a case arising from North Dakota with a petition for certiorari (“cert”) currently pending before the U.S. Supreme Court, raises a fundamental question: do private parties have the right to enforce § 2 VRA claims at all? This post argues that private parties must retain the right to enforce § 2 of the VRA because, without private enforcement, individuals would have no meaningful mechanism to challenge § 2 violations. 

The Voting Rights Act 

Signed in 1965 by President Lyndon B. Johnson, the VRA enforces the constitutional guarantees of the Fifteenth Amendment. Section 2 of the VRA prohibits any state voting practices and procedures that discriminate on the basis of race, color, or language minority-group status. Specifically, § 2 prohibits any standard, practice, or procedure that “results in a denial or abridgement of the right of any [U.S.] citizen . . . to vote on account of race or color.” At its core, the VRA bans distributing minority votes across districts in a way that dilutes their voting power.

A Challenge to North Dakota’s Redistricting Map 

The dispute began in 2021 when three Native Americans, the Turtle Mountain Band of Chippewa Indians, and the Spirit Lake Tribe (collectively, the “Petitioners”) challenged North Dakota’s 2021 legislative redistricting plan. Among other things, Petitioners argued that the new map diluted Native American voting strength in violation of § 2 of the VRA. 

According to Petitioners, North Dakota’s map failed to account for the growing Native American population and split Tribal communities in ways that made it nearly impossible for Native voters to elect their preferred candidates. The impact became apparent in the first election held under the map. Based on statistical data, Native Americans should have held roughly three state senate and six state house seats. Instead, under the new map, they held no senate seats and only two in the house. 

To evaluate the claim, the District Court applied the framework established in Thornburg v. Gingles, which sets out three threshold requirements for § 2 voter dilution claims to proceed: (1) the minority group is large enough and geographically concentrated enough to form a majority in a single district; (2) members of the minority group tend to vote for the same candidates; and (3) white voters tend to vote together in a way that usually defeats the minority group’s preferred candidate. After finding that Petitioners satisfied these conditions, the District Court conducted a broader totality of the circumstances analysis to determine whether minority voters had less opportunity than others to elect representatives of their choosing. The District Court concluded that North Dakota’s redistricting plan ultimately diluted Native American voting strength in violation of § 2 of the VRA.  

The District Court ordered North Dakota to produce a VRA-compliant map by December 2023. When the state failed to do so, the Court ordered the state to adopt the Petitioners’ proposed map for the 2024 election cycle. Petitioners’ map combined the two reservations into a single legislative district. In the first election held under the new map, the district elected three Tribal members to the state legislature, an outcome that appeared to validate Petitioners’ claim that the previous map diluted Native voting strength.  

Eighth Circuit Decision 

North Dakota’s Secretary of State appealed to the U.S. Court of Appeals for the Eighth Circuit. But, instead of focusing on whether the map violated the VRA, the appeal took a different direction—the state argued that there is no private right of action to enforce § 2 of the VRA through 42 U.S.C. § 1983. The Eighth Circuit agreed. In its decision, the court reasoned that because § 2 “does not unambiguously confer an individual right, the [Petitioners] do not have a cause of action under 42 U.S.C. § 1983 to enforce § 2 of the [VRA].” The ruling effectively eliminated private enforcement of § 2 across the Eighth Circuit, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. 

What Happens Next? 

Petitioners sought rehearing en banc in the Eighth Circuit, but the Court declined to reconsider its decision. They then petitioned the U.S. Supreme Court for review. Justice Kavanaugh issued a temporary stay of the Eighth Circuit’s decision pending further order of the Court.  

Now the Supreme Court faces three potential paths. First, the Court could grant cert and affirm the Eighth Circuit, holding that § 2 does not provide a private right of action. Such a ruling would dramatically reshape voting rights enforcement nationwide, leaving private citizens unable to challenge discriminatory voting practices. Second, the Court could decline to hear the case. If cert is denied, the Eighth Circuit’s ruling would remain in place for the seven states within that circuit, while other circuits continue to allow private § 2 lawsuits—unless they decide to follow in the footsteps of the Eighth Circuit. This result creates a fragmented system. Third, the Court could grant cert and reverse the Eighth Circuit, reaffirming that private parties may enforce § 2 claims. This outcome would preserve the traditional enforcement mechanism that has been used in practice for decades.    

Why Private Enforcement Matters

The Eighth Circuit’s decision is striking because most § 2 cases have historically been brought by private individuals, not the federal government. Notably, DOJ attorneys acknowledged that the DOJ relies on private parties to bring these cases because the DOJ lacks the resources necessary to litigate every potential violation itself, even if they wished to do so. This reliance on private enforcement becomes even more significant in light of recent developments. The DOJ reduced its Civil Rights Division staff by 70%, dismissed most of its pending § 2 cases, and redirected their focus towards matters related to the 2020 general election. Thus, making federal enforcement even less likely. Without private lawsuits, many voting rights violations could go unchallenged. 

What Does This Mean for Arizona? 

The potential elimination of private right of action could have significant implications for states like Arizona, where minority communities make up a significant portion of the population. Census data indicates that Hispanic or Latino residents account for roughly one-third (32.1%) of Arizona’s population, while Native Americans represent approximately 5% of the population. Not to mention, Arizona has one of the largest Indigenous populations in the country. If courts eliminate private enforcement, voters in diverse states could lose one of the primary tools historically used to challenge discriminatory district maps. This is especially important for states, like Arizona, who have a long history of discriminatory election laws. 

Conclusion

Even if the Supreme Court declines to hear the case, the issue of whether private parties have the right to enforce § 2 of the VRA will not disappear. Other courts, including the Ninth Circuit, could eventually confront the same question. If additional circuits adopt the Eighth Circuit’s reasoning, private enforcement of the VRA could steadily disappear across the country. 

For now, the fate of one of the VRA’s most important enforcement tools remains uncertain. But whether through Supreme Court review or future circuit decisions, the question of who can enforce § 2 may soon reshape the landscape of voting rights litigation nationwide.